Citation Nr: 0006586
Decision Date: 03/10/00 Archive Date: 03/17/00
DOCKET NO. 93-23 998 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to an increased evaluation for the residuals of a
left ankle injury, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from March 1959 to March
1964.
This appeal arose from an April 1992 rating decision of the
Newark, New Jersey, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to an
increased evaluation for the service-connected left ankle
injury residuals. This decision was confirmed and continued
by rating actions issued in October and December 1992. The
veteran testified at a personal hearing in March 1993; the
hearing officer issued a decision in April 1993 which
continued the denial of the benefit sought. A hearing was
held before a member of the Board of Veterans' Appeals
(Board) sitting in Washington, D.C. in March 1994. In August
1995, this case was remanded for additional development. In
December 1996, the veteran and his representative were
informed through a supplemental statement of the case of the
continued denial of his claim. In February 1998, this case
was again remanded for evidentiary development. He and his
representative were informed through a June 1999 supplemental
statement of the case of the continued denial of the benefit
requested.
The record does show that the RO expressly considered
referral of this case to the Chief Benefits Director or the
Director, Compensation and Pension Service, for the
assignment of an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) (1995). The United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999)(hereinafter "the Court"),
has recently held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance; however, the Board is
not precluded from considering whether referral to the
appropriate first-line official is required. The Board is
still obligated to seek out all issues that are reasonably
raised from a liberal reading of documents or testimony of
record and to identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). Moreover, the Court has also held
that the Board must address referral under 38 C.F.R.
§ 3.321(b)(1) only when circumstances are presented which the
Director of VA's Compensation and Pension Service might
consider exceptional or unusual. Shipwash v. Brown, 8 Vet.
App. 218,227 (1995). Having reviewed the record with these
holdings in mind, the Board agrees that there was no basis
for action on the question of the assignment of an
extraschedular rating.
The veteran's representative, in the February 2000 Informal
Hearing Presentation, appears to be raising a claim of
entitlement to an earlier effective date for the award of a
20 percent disability evaluation for the left ankle fracture
residuals. As this issue is not inextricably intertwined
with the issue on appeal, and has not been properly prepared
for appellate review at this time, it is hereby referred to
the RO for appropriate action.
FINDING OF FACT
The veteran's left ankle injury residuals are manifested by
subjective complaints of pain in the left ankle, with a
feeling of weakness in the left lower extremity, with
objective evidence of some limitation of plantar flexion;
normal inversion and eversion; pain to palpation over the
medial and lateral aspects; a normal gait; x-ray evidence of
an old trauma; and no evidence of incoordination, excess
fatigability, pain on motion, lack of endurance or weakness.
CONCLUSION OF LAW
The criteria for an increased evaluation for the service-
connected left ankle injury residuals have not been met.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4,
including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Codes
5003, 5010, 5270, 5271 (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, he has presented a claim
which is plausible. It is also found that all relevant facts
have been properly developed. The record is devoid of any
indication that there are other records available which
should be obtained. Therefore, no further development is
required in order to comply with the duty to assist mandated
by 38 U.S.C.A. § 5107(a).
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on the average impairment of earning capacity.
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999).
When a question arises as to which of two evaluations shall
be assigned, the higher evaluation will be assigned of the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
VA has a duty to acknowledge and consider all regulations
which are potentially applicable based upon the assertions
and issues raised in the record and to explain the reasons
used to support the conclusion. Schafrath v. Derwinski, 1
Vet. App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. § 4.1, that requires that each
disability be viewed in relation to its history and that
there be an emphasis placed upon the limitation of activity
imposed by the disabling condition, and 38 C.F.R. § 4.2 which
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran working or
seeking work. 38 C.F.R. § 4.10 states that, in cases of
functional impairment, evaluations are to based upon lack of
usefulness, and medical examiners must furnish, in addition
to etiological, anatomical, pathological, laboratory and
prognostic data required for ordinary medical classification,
full description of the effects of the disability upon a
person's ordinary activity. This evaluation includes
functional disability due to pain under the provisions of 38
C.F.R. § 4.40. These requirements for the evaluation of the
complete medical history of the claimant's condition operate
to protect claimants against adverse decision based upon a
single, incomplete or inaccurate report and to enable VA to
make a more precise evaluation of the disability level and
any changes in the condition.
In evaluating a service-connected disability involving a
joint rated on limitation of motion, the Board must also
consider functional loss due to weakness, fatigability,
incoordination or pain on movement of joint under the
provisions of 38 C.F.R. § 4.45 (1999).
With any form of arthritis, painful motion is an important
factor of disability, the facial expression, wincing, etc.,
on pressure or manipulation, should be carefully noted and
definitely related to affected joints. Muscle spasm will
greatly assist the identification. Sciatic neuritis is not
uncommonly caused by arthritis of the spine. The intent of
the schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is
the intention to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimum compensable rating for the joint.
Crepitation either in the soft tissues such as the tendons or
ligaments, or crepitation within the joint structures should
be noted carefully as points of contact which are diseased.
Flexion elicits such manifestations. The joints involved
should be tested for pain on both active and passive motion,
in weight-bearing and nonweight-bearing and, if possible,
with the range of the opposite undamaged joint. 38 C.F.R.
§ 4.59 (1999).
The Board notes that while the regulations require review of
the recorded history of a disability by the adjudicator to
ensure an accurate evaluation, the regulations do not give
past medical reports precedence over the current medical
findings. Where an increase in the disability rating is at
issue, the present level of the veteran's disability is the
primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
The veteran has been service-connected for the residuals of a
left ankle injury since September 1982. The service medical
records had indicated that he had twisted the left ankle on
February 17, 1963 while running. He was casted in service
and swelling of the ankle was still noted in April 1963. A
VA examination conducted in November 1977 included an x-ray
which found evidence of an old fracture of the tip of the
medial malleolus. The August 1982 VA examination had
revealed slight swelling of the left ankle, as well as some
tenderness over the medial aspect. Range of motion was
normal.
A VA examination was conducted in June 1992. He ambulated
very gingerly with an alternating gait and the use of aids.
He was unable to walk on his heels or toes or do a deep knee
bend. The range of motion was for all practical purposes 0
degrees. The clinical impression was of degenerative joint
disease (DJD) secondary to strain.
The veteran testified at a personal hearing at the RO in
March 1993. He stated that his ankle was painful and numb.
A June 1993 private x-ray revealed no fracture. There was
soft tissue swelling around the lateral medial malleolus.
The veteran then testified before a member of the Board in
March 1994. He indicated that, at the time of the original
injury, the swelling of the ankle had been quite severe. He
complained of dryness of the skin, pain and stiffness. He
reported that he could only walk for short periods of time
and needed either crutches or a wheelchair.
A VA examination of the veteran was performed in July 1996.
He stated that the ankle bothered him some of the time. He
indicated that he would take pain medication once or twice a
week. An x-ray from June 11, 1996 showed some mild DJD in
the left ankle. The objective examination found no swelling,
warmth, tenderness or crepitance. Flexion was to 30 degrees;
inversion was to 15 degrees; and eversion was to 10 degrees.
The diagnosis was status post sprain of the left ankle in
service, now with mild DJD by x-ray. Pain several times per
week was noted.
In October 1996, an addendum was made to the above VA
examination. This noted complaints of limitation of motion.
There was no evidence of neurological deficits.
The veteran was re-examined by VA in October 1998. He stated
that he did not recall actually breaking the ankle at the
time of the original injury; he only recalled twisting it.
Since then, he indicated that he has developed trouble
walking, which has required the use of a cane. He reported
that he had pain in the ankle and that his entire left lower
extremity felt weak. He also claimed that his limbs
"fatigued" easily. The objective examination noted that
dorsiflexion was to 20 degrees and plantar flexion was to 30
degrees (the nonservice-connected right ankle displayed 20
degrees of dorsiflexion and 35 degrees of plantar flexion).
There was pain to palpation over the medial and lateral
aspects of the ankle which progressed into the distal tibia.
No overt edema was present. There was no evidence of
incoordination, excessive fatigability, problems on
repetitive use, lack of endurance or weakness. There was no
increased heat or swelling. Inversion and eversion of the
subtalar joints was normal. His gait was noted to be normal.
An x-ray reportedly showed old trauma to the left ankle. The
diagnosis was degenerative arthritis of the left ankle.
According to the applicable criteria, arthritis due to
trauma, substantiated by x-ray findings, is rated as
degenerative arthritis. 38 C.F.R. Part 4, Code 5010 (1999).
Degenerative arthritis established by x-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. Limitation of motion must be objectively confirmed
by findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. 38 C.F.R. Part 4, Code 5003
(1999).
Marked limitation of motion of either ankle warrants a 20
percent evaluation. 38 C.F.R. Part 4, Code 5271 (1999). A
30 percent evaluation requires ankylosis of the ankle if the
ankle is fixed in plantar flexion at an angle between 30 and
40 degrees or in dorsiflexion at an angle between 0 and 10
degrees. 38 C.F.R. Part 4, Code 5270 (1999).
After a careful review of the evidence of record, it is found
that an evaluation in excess of 20 percent for the service-
connected left ankle injury residuals is not warranted. The
objective evidence of record shows that the veteran currently
has 20 degrees of dorsiflexion and 30 degrees of plantar
flexion. There is no evidence that the ankle joint is
ankylosed, with fixation in plantar flexion at an angle
between 30 and 40 degrees or with fixation of dorsiflexion at
an angle between 0 and 10 degrees. Therefore, entitlement to
a 30 percent evaluation pursuant to 38 C.F.R. Part 4, Code
5270 (1999) has not been established. Moreover, there is no
objective evidence, despite the veteran's complaints of
weakness and fatigability of the left lower extremity, of
incoordination, excessive fatigability, problems on
repetitive use, lack of endurance or weakness. Furthermore,
while there was evidence of pain on palpation on the medial
and lateral aspects of the left ankle, there was no pain on
motion mentioned by the examiner. Therefore, it is
determined that there is no objective evidence that would
justify the assignment of an evaluation in excess of 20
percent for the veteran's current level of objective
disability.
In the February 17, 2000 Informal Hearing Presentation, the
veteran's representative had requested that a separate
evaluation be assigned to the veteran's DJD of the left
ankle. There are occasions when a veteran could be entitled
to a separate evaluation for degenerative changes. See
VAOPGCPREC 9-98 (August 14, 1998); 38 C.F.R. §§ 4.40, 4.45,
4.59 (1999). In order to make this determination, there must
be evidence concerning range of motion, as well as evidence
of pain on motion. Firstly, there is no objective evidence
of pain on motion. Furthermore, there appears to be no
distinct pathology that is not related to the DJD; that is,
his symptoms, to include his subjective complaints of pain,
are all related to the DJD of the left ankle. To rate him
separately would violate the prohibition against pyramiding.
See 38 C.F.R. § 4.14 (1999) (which states that, generally,
the evaluation of the same disability under various diagnoses
is to be avoided. Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation. Dyspnea, tachycardia,
nervousness, fatigability, etc., may result from many causes;
some may be service connected, others, not. Both the use of
manifestations not resulting from service connected disease
or injury in establishing the service connected evaluation
and the evaluation of the same manifestation under different
diagnoses are to be avoided).
In conclusion, it is found that the preponderance of the
evidence is against the veteran's claim for an increased
evaluation for the service-connected left ankle injury
residuals.
ORDER
An increased evaluation for the service-connected left ankle
injury residuals is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals